1. This writ petition is directed against the order of the Industrial Tribunal, Bangalore, dated 19th May, 1976, rejecting an application presented to it by the petitioner - The Radio and Electricals ., Bangalore - under S. 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter referred to as ('the Act') on 16th June, 1975 seeking its approval, for the order dated 16th June, 1975 passed by the petitioner - management dismissing one of its workmen, who is the 2nd respondent in this writ petition. The petitioner was required to seek such an approval as an industrial dispute was pending between the petitioner and their workmen in I.D. No. 17 of 1973, in view of 33(2)(b) of the Act, which reads as follows :
'33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.
(1) ** ** (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, of where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman.
(a) * **(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman;
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.'
2. The facts leading to the making of the application are these. A written complaint dated 9th December, 1947 was given by a workman by name Ganga Gangahanumaiah alleging that the 2nd respondent assaulted him on 6-12-1974 at 9-00 p.m. in front of the new fabrication building of the factory opposite to typing pool. On receipt of the complaint, the 2nd respondent was kept under suspension by an order issued by the petitioner on 10/11th December, 1974. A show cause notice was also issued on the same day. The following two charges were framed against the 2nd respondent :
'(a) On 6-12-1974 at about 9-00 p.m. you have un-authorized called Shri H. Gangahanumaiah, Clerk 'B' Code No. 41-0904, of Canteen Dept., and slapped him on his face in front of the new Fabrication Building (i.e., opposite Typing Pool); and
(b) You were also not found in the appointed place of work on the said day at the time of the incident took place.
Thus you have committed an act of misdemeanour under S. 17(n) and misconduct under S. 21(e) of the Co's Standing Orders.'
3. The 2nd respondent submitted a detailed written reply on 16th December, 1974. He refuted the charge levelled against him. Not satisfied with the reply, the petitioner-management instituted disciplinary proceedings and appointed M. K. Narasimha Rao, Cost Accounts Officer as enquiry officer. He conducted the domestic enquiry. He recorded the evidence adduced in support of the charge and also the defence evidence adduced by the 2nd respondent. The enquiry officer gave his report dated 23rd May, 1975 holding the 2nd respondent guilty of the charge. The petitioner-management agreed with the findings and issued a notice dated 24th May, 1975 asking him to show cause why he should not be dismissed from the service of the company. The 2nd respondent-workman furnished his reply on 6th June, 1975. Rejecting the explanation as not convincing the petitioner-management imposed the penalty of dismissal by their order dated 16th June, 1975.
4. As an industrial dispute between the petitioner-management and their workmen was pending, the management filed an application under S. 33(2)(b) of the Act before the 1st respondent-Tribunal seeking its approval for the order dismissing 2nd respondent from their service. The validity of the domestic enquiry on the basis of which the order of dismissal was passed was taken as a preliminary issue. On the Tribunal coming to the conclusion that the domestic enquiry was vitiated by the violation of principles of natural justice, the petitioner-management sought permission of the Tribunal to lead evidence before the Tribunal. As it is the settled law that such a course is open, the Tribunal permitted the parties to adduce evidence before it afresh. The petitioner-management examined the complainant, security supervisor Narasimha Murthy and compounder G. Rame Gowda in support of the charge. The enquiry officer, who conducted the domestic enquiry, also was examined before the Tribunal on 9th March, 1976 and he produced the enquiry proceedings and the same was marked as Ext. A3. Then it was submitted on behalf of the 2nd respondent that he relies on the evidence of witnesses given in support of his defence in the domestic enquiry.
5. Thereafter, after hearing arguments addressed on behalf of both the parties and considering the evidence on record, the Tribunal made its order dated 19th May, 1976 holding that the charges framed against the 2nd respondent-workman are not proved and rejecting the application of the petitioner-management filed under S. 33(2)(b) of the Act. It is this order the legality of which is challenged by the petitioner-management in this writ petition.
6. Sri B. T. Parthasarathy, learned counsel for the petitioner-management, urged the following contention in support of the writ petition :
The Tribunal acted in excess of its jurisdiction in going into question of facts.
borating the contention, he submitted that in an application made under S. 33(2)(b) of the Act all that the Tribunal is empowered to do is to ascertain whether the finding was based on some evidence. He pointed out that from the order it is not discernible that the Tribunal was conscious of its limited jurisdiction but has proceeded to act as an adjudicating Court exercising the power under S. 10 of the Act. In support of this submission, he relied on the decision of the Supreme Court in the case of Lord Krishna Textile Mills v. Its Workmen) : (1961)ILLJ211SC . The relevant portions on which he relied are found at pages 863 and 865 in paras 10 and 16 which read as follows :
It would be noticed that even during the pendency of an industrial dispute the employer's right is now recognised to make an alteration in the conditions of service so long as it does not relate to a matter connected with the pending dispute, and this right can be exercised by him in accordance with the relevant standing orders. In regard to such alteration no application is required to be made and no approval required to be obtained. When an employer, however, wants to dismiss or discharge a workman for alleged misconduct and connected with the dispute he can do so in accordance with the standing orders but a ban is imposed on the exercise of this power by the proviso. The proviso requires that no such workman shall be discharged or dismissed unless two conditions are satisfied; the first is that the employee concerned should have been paid wages for one month, and the second is that an application should have been made by the employer to the appropriate authority for approval of the action taken by the employer. It is plain that whereas in cases falling under S. 33(1) no action can be taken by the employer unless he has obtained previously the express permission of the appropriate authority in writing in cases falling under sub-s. (2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action. The requirement that he must obtain approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by S. 33(2) is not as rigid or rigorous as that imposed by S. 33(1). The jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval. In dealing with cases falling under S. 33(2) the industrial authority will be entitled to enquire whether the proposed action is in accordance with the standing orders, whether the employee concerned has been paid wages for one month, and whether an application has been made for approval as prescribed by the said sub-section. It is obvious that in cases of alteration of conditions of service falling under S. 33(2)(a) no such approval is required and the right of the employer remains unaffected by any ban. Therefore, putting it negatively the jurisdiction of the appropriate industrial authority in holding an enquiry under S. 33(2)(b) cannot be wider and is, if at all, more limited, than that permitted under S. 33(1), and in exercising its powers under S. 33(2) the appropriate authority must bear in mind the departure deliberately made by the Legislature in separating the two classes of cases falling under the two sub-sections, and in providing for express permission in one case and only approval in the other. It is true that it would be competent to the authority in a proper case to refuse to give approval, for S. 33(5) expressly empowers the authority to pass such order in relation to the application made before it under the proviso to S. 33(2)(b) as it may deem fit; it may either approve or refuse to approve; it can, however, impose no conditions and pass no conditional order.
* * * In view of the limited nature and extent of the enquiry permissible under S. 33(2)(b) all that the authority can do in dealing with an employer's application is to consider whether a prima facie case for according approval is made out by him or not. If before dismissing an employee, the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by S. 33(2)(b) and the proviso are satisfied or not. Do the standing orders justify the order of dismissal Has an enquiry been held as provided by the standing orders Have the wages for the months been paid as required by the proviso ?'
He pointed out that from the above decision it is clear that power under S. 33(2)(b) is more limited than the power given to it under S. 33(1) and that the Tribunals should bear in mind the departure deliberately made by the Legislature by providing for express permission in the cases falling under S. 33(1) and only approval in cases coming under S. 33(2)(b) of the Act. He, therefore, urged that the Tribunal has completely lost sight of its limited jurisdiction and has exceeded its jurisdiction in going deep into the matter and recording a finding of fact in favour of workmen, instead of confining its attention to find out as to whether or not there was some evidence on the basis of which the action taken by the Management could be sustained.
7. On the contrary Sri S. Krishnaiah, learned counsel appearing for the 2nd respondent-workman, contended that in cases, as in present case, where the Tribunal comes to the conclusion that the domestic enquiry is invalid on the ground of violation of principles of natural justice or for other reasons, as also in cases where no domestic enquiry preceded the order of penalty against the workman the jurisdiction of the Tribunal even under S. 33(2)(b) of the Act is much wider, and the Tribunal has jurisdiction to consider the evidence adduced before it and come to its own conclusions. In support of this contention, he relied on a few decisions of the Supreme Court. The decisions relied on by him and the relevant portions thereof are these :
Delhi Cloth and General Mills Co. v. Ludh Budh Singh, : (1972)ILLJ180SC .
. From the above decisions the following principles broadly emerge :
1. * * * * 2. * * * * 3. When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance, to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
4. When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied, on evidence adduced before it, that he was or was not guilty of the alleged misconduct.
5. * * * * 6. * * * * 7. The above principles apply to the proceedings before the Tribunal which have come before it either on a reference under S. 10 or by way of an application under S. 33 of the Act.'
(ii) Bharat Iron Works v. Bhagubhai Balubhai Patel, : 2SCR280 :
'In a long line of decisions of this Court the ambit of S. 33, Industrial Disputes Act, 1947, is now well established. There is also no difference in principle of the law applicable to a case under S. 10, Industrial Disputes Act and that under S. 33. To put it clearly, it is this :
When an application under S. 33 whether for approval or for permission is made to a Tribunal it has initially a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. This is, however, the position only when the domestic enquiry preceding the order of dismissal is free from any defect, that is to say, free from the vice of violation of the principles of natural justice. If on the other hand, there is violation of the principle of natural justice, the Tribunal will then give opportunity to the employer to produce evidence, if any, and also to the workman to rebut it if he so chooses. In the latter event, the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced before it with regard to the proof of the misconduct charged, and the Tribunal, then, will not be confined merely to consider whether a prima facie case is established against the employee. In other words, in such an event, the employer's findings in the domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits.'
(iii) Mahendra Singh Dhantwal v. Hindustan Motors Ltd., [1976-II L.L.J. 259]; A.I.R. 1976 S.C. 2065, 2066 :
'From the provisions of S. 33 it is manifest that punitive action by the employer in whatever form it may be passed is permissible against an ordinary workman, as distinguished from a protected workman, even during the pendency of proceedings before the Tribunal provided that the employer pays one month's wages and also applies to the concerned Tribunal for approval of his action. Since the action is punitive, namely, dismissal or discharge for misconduct, the Tribunal has to oversee the action to guarantee that no unfair labour practice or victimisation has been practised thereby. If the procedure of fair hearing has been observed the Tribunal has to find in an application under S. 33 that a prima facie case is made out for dismissal. If, on the other hand, there is violation of the principles of natural justice in the enquiry, the Tribunal can go into the whole question relating to the misconduct and come to its own conclusion whether the same is established.'
On the basis of the above decisions, he submitted that as the domestic enquiry was found vitiated and held not valid, the Tribunal had the jurisdiction to record its own finding on the evidence adduced before it.
8. At this stage it is necessary to refer to one important aspect relating to the procedure adopted before the Tribunal. After hearing for sometime, I felt that the Tribunal in considering the evidence on behalf of the 2nd respondent adduced not before it, but before the domestic enquiry has committed a procedural irregularity. In my opinion, when the domestic enquiry is held invalid and the Tribunal decides to record evidence before it both the parties should adduce evidence afresh before the Tribunal and the Tribunal cannot rely on the evidence in favour of any party which was adduced in the very domestic enquiry which is held invalid. The learned counsel for the 2nd respondent took time and filed a certified copy of the order-sheet before the Tribunal along with a memo dated 15-12-1977. According to the order-sheet on 9-3-1976 after the evidence on behalf of the petitioner-management, it was submitted on behalf of the workmen that he does not like to adduce rebuttal evidence and he relies on the evidence adduced in his defence in the domestic enquiry. This is obviously not objected to by the petitioner-management, agreed to by the Tribunal. Consequently the Tribunal has relied on the evidence in the domestic enquiry records, which as stated earlier was marked as Ext. A3 in the course of the evidence given by the enquiry officer. In view of the acquiescence, on the part of the petitioner-management the procedure adopted has to be upheld. But for this circumstance, in view of the decision of the Supreme Court in K. N. Baruah v. Management of Budla Beta, T.E., SC. Labour Judgments 1950-67 Vol. I, p. 2667, inclined to hold that it was not open for the Tribunal to have relied on the oral evidence in support of the defence of the 2nd respondent-workman which was not adduced before it as by such method the Tribunal is deprived of the opportunity of observing the demeanour of the witnesses, and the opposite party is deprived of the opportunity of cross-examining the witnesses before the Tribunal.
9. Now reverting to the main question, it may be seen from the three decisions of the Supreme Court relied on by the 2nd respondent, the Tribunal has jurisdiction even while dealing with an application for approval under S. 33(2)(b) of the Act, to go into questions of fact and to come to its own conclusion, in case where no domestic enquiry preceded the order of penalty or in cases where the domestic enquiry though held is found vitiated and held invalid. The jurisdiction of the Tribunal is limited, to find out as to whether there was a prima facie case, only in case where the domestic enquiry on the basis of which penalty is imposed is found to be valid. The present case falls under the former category, as the domestic enquiry on the basis of which order of dismissal was passed against the 2nd respondent was found to be invalid.
10. Shri B. T. Parthasarathy, however, tried to distinguish the decisions relied on, in support of the contention urged on behalf of the 2nd respondent-workman. He urged that even in cases where the domestic enquiry is found invalid, the Tribunal's jurisdiction though not confined to the examination as to whether a prima facie case is made out or not, still cannot go deep into the matter and is limited to find out as to whether there was some evidence in support of the charge. In support of this submission he relied on the decision of the Supreme Court reported in Workmen of M/s. Firestone Tyre & Rubber Co. of India P. Ltd. v. Management, : 3SCR802 which is given below :
'45. The Legislature in S. 11A has made a departure in certain respects in the law as laid down by this Court. For the first time, power has been given to a Tribunal to satisfy itself whether misconduct is proved. This is particularly so, as already pointed out by us, regarding even findings arrived at by an employer in an enquiry properly held. The Tribunal has also been given power, also for the first time, to interfere with the punishment imposed by an employer. When such wide powers have been now conferred on Tribunals, the Legislature obviously felt that some restrictions have to be imposed regarding what matters could be taken into account. Such restrictions are found in the proviso. The proviso only emphasise that the Tribunal has to satisfy itself one way or other regarding misconduct, the punishment and the relief to be granted to workmen only on the basis of the 'materials on record' before it. What those materials comprise of have been mentioned earlier. The Tribunal, for the purposes referred to above, cannot call for further or fresh evidence, as an appellate authority may normally do under a particular statute, when considering the correctness or otherwise of an order passed by a subordinate body. The 'matter' in the proviso refers to the order of discharge or dismissal that is being considered by the Tribunal.
46. It is to be noted that an application made by an employer under S. 33(1) for permission or S. 33(2) for approval has still to be dealt with according to the principles laid down by this Court in its various decisions. No change has been effected in that section by the Amendment Act. It has been held by this Court that even in cases where no enquiry has been held by an employer before passing an order of dismissal or discharge, it is open to him to adduce evidence for the first time before the Tribunal. Though the Tribunal is exercising only a very limited jurisdiction under this Section nevertheless, it would have applied its mind before giving permission or approval. Section 33 only imposes a ban. An order of dismissal or discharge passed even with the permission or approval of the Tribunal can form the subject of a dispute and as such referred for adjudication. Quite naturally, when the dispute is being adjudicated, the employer will rely upon the proceedings that were already held before a Tribunal under S. 33. They will form part of the materials on record before the Tribunal. The contention of Mr. Deshmukh that if no enquiry is held, the order of dismissal will have to be set aside, if accepted, will have to be set aside, if accepted, will lead to very incongruous results. The Tribunal would have allowed an employer to adduce evidence before it in proceedings under S. 33 for the first time, even though no domestic enquiry had been held. If it is held that another Tribunal which adjudicates the main dispute, has to ignore those proceedings and straightway order reinstatement on the ground that no domestic enquiry had been held by an employer, it will lead to very startling results. Therefore, an attempt must be made to construe S. 11A in a reasonable manner. This is another reason for holding that the right to adduce evidence for the first time recognised in an employer, has not been disturbed by S. 11A.'
11. I do not see any force in the submission made on behalf of the petitioner. There is nothing in the above judgment which supports the submission of the petitioner, to the effect that the jurisdiction of the Tribunal is limited to find out as to whether the charge is supported by some evidence, even in cases, as the present one where the domestic enquiry is held invalid. On the other hand in the beginning of para 46, the principles laid down by the Court on the interpretation of S. 33 is reiterated. Further in para 27 of the same judgment the view taken by the Court in the three decisions on which the 2nd respondent has relied on is restated. Relevant portion of the said para is given below :
'27. From these decisions the following principles broadly emerge :
(b) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective'.
12. In the decisions of the Supreme Court referred to above, the extent of power and jurisdiction of the Industrial Tribunals while exercising their power under S. 33 of the Act has been clearly laid down. As set out earlier in : (1972)ILLJ180SC after setting out the powers of the Tribunal in cases where no enquiry preceded penal action or in cases the enquiry held is found vitiated the Court said that the principle, viz., that the Tribunal can consider the evidence and come to its own conclusion, apply to the proceedings before the Tribunal which have come before it either on a reference under S. 10 or by way of an application under S. 33 of the Act. The same view is reiterated in : 3SCR802 . Again in the decision reported in A.I.R. 1976 S.C. page 2065 at 2066, the end of the opening para itself the Supreme Court has laid down that in cases where there is violation of principles of natural justice in the domestic enquiry, the Tribunal can go into the whole question relating to the misconduct and come to its own conclusion whether the same is to its own conclusion whether the same is established. Therefore, I am unable to agree with the contention urged for the petitioner.
13. It is no doubt true that though the Tribunal, has stated in concluding para of its order that the management failed to make out a prima facie case against the workman, on going through the order it is clear that the Tribunal has not confined to find out as to whether there was a prima facie case for imposing the penalty, but it has come to the conclusion after considering the entire evidence that the charge framed against the 2nd respondent-workman is not proved. But in doing so the Tribunal did not exceed its jurisdiction. I hold that as the domestic enquiry on the basis of which the penalty of dismissal was imposed, was found to be invalid, the jurisdiction of the Tribunal was not confined to the examination of the existence of a prima facie case for the penal action but it could come to its own conclusion on consideration of the evidence adduced before it and there was no further limitation on its power to come to its own conclusion on the evidence adduced before it. The Tribunal in recording evidence and giving its finding, acted within the jurisdiction conferred on it under S. 33(2)(b) of the Act. I, therefore, reject the contention urged for the petitioner that the Tribunal exceeded its jurisdiction.
14. For the reasons stated above, I uphold the impugned order of the Tribunal and dismiss the writ petition, No costs.